The Trump Administration’s View on Marijuana: Reading the (Tea) Leaves

Wednesday, January 18, 2017

The incoming Trump Administration may usher in a more hostile climate to state efforts to legalize the sale and distribution of marijuana and products that contain the drug. The Obama Administration opposed the federal legalization of marijuana, but its enforcement approach, which focused on persons and entities whose conduct interferes with eight drug enforcement priorities, is outlined in a memorandum. This guidance does not have the force and effect of law, which means that the incoming Administration may replace it with a new guidance addressing prosecutorial discretion in marijuana cases. Below we examine the positions taken by President-elect Trump and his nominee for Attorney General, Senator Jeff Sessions, on (1) medical and recreational marijuana, (2) states’ rights, (3) attitudes toward marijuana use, and (4) enforcement of federal drug laws.

President-elect Trump has made it clear that he supports medical marijuana. In a February 11, 2016 appearance on the Fox News show, The O’Reilly Factor, the President-elect stated, “I do want to see what the medical effects are. I have to see what the medical effects are and, by the way — medical marijuana, medical? I’m in favor of it a hundred percent.” This statement is consistent with Trump’s earlier comments at the 2015 Conservative Political Action Conference (CPAC). The President-elect remarked, in response to moderator Sean Hannity’s question as to whether Colorado’s marijuana experiment was “good or bad”: “I’d say it’s bad. Medical marijuana is another thing. … But I think medical marijuana, 100 percent.”

Trump’s public position on the legalization of recreational marijuana is less favorable. The President-elect stated at least three times in the last two years that legalization of recreational marijuana in Colorado has “some big problems,” is “causing a lot of problems,” and is not “trouble-free.” He called Colorado’s marijuana legalization scheme “bad” and emphasized “I feel strongly about that,” at the CPAC conference. But the President-elect also appears to view legalization as a states’ rights issue. When pressed by moderator Sean Hannity at the CPAC conference on the states’ rights aspect of marijuana legalization, Trump said: “If they vote for it, they vote for it.” At a rally later in 2015, he reportedly stated: “In terms of marijuana and legalization, I think that should be a state issue, state-by-state.”

The President-elect could be signaling a new approach to enforcement of marijuana laws in his selection of the Senate’s “single biggest opponent to legalization” to be Attorney General. Senator Sessions has said that “marijuana is not the kind of thing that ought to be legalized” and noted the “Department of Justice needs to be clearer” on marijuana legalization.

Senator Sessions has made several statements of concern to the marijuana industry and supporters of legalization. First, Senator Sessions has condemned President Obama for comparing marijuana to cigarettes and alcohol. In a 2015 news release discussing a bill to reduce prison sentences for drug trafficking, Senator Sessions discussed attitudes towards, and the legalization of, marijuana: “[T]he President should never have said smoking marijuana is like smoking cigarettes. ‘Oh, I wish I hadn’t done it.’ That’s the kind of message that people hear, and now we have states legalizing it and they’re already talking about re-criminalizing it. It’s a mistake. We’ve seen that experiment before.”

Similarly, in an exchange with then-Attorney General Holder in a 2014 Senate Judiciary Committee hearing, Senator Sessions expressed his dismay with a The New Yorker article in which President Obama said he did not think marijuana “is more dangerous than alcohol.” Senator Sessions said that he was “heartbroken” by the President’s comment and shift on the longstanding federal position on the dangers of marijuana use: “I just think it’s a huge issue. I hope you will talk with the President. You’re close to him. And begin to push back, pull back, from this position that I think is going to be adverse to the health of America.”

Second, the Senator has criticized the Obama Administration’s weakening of enforcement of laws related to drug offenses, mandatory minimum sentencing, and marijuana:

[T]he administration has declined to enforce federal drug laws regarding marijuana in Colorado, Washington, and Oregon. It’s still a federal offense to deal in marijuana in the United States, and so even though a state doesn’t have that law, the federal government does. They said, well, if you don’t enforce it, we won’t enforce it. Another relaxation of federal law.

In comparison, the Senator has often touted his tough record on criminal prosecutions of drug offenses. In a 2002 hearing before the Senate Judiciary Committee’s Subcommittee on Crime and Drugs, he said: “When I was a US attorney, we would sometimes try to take out an entire organization. We may only have a certain amount of drugs on some of the lower people, but we felt it was justified in prosecut[ing] the whole organization, so there wouldn’t be anyone left to continue the activity in the neighborhood.” Senator Sessions also has expressed concerns about the US Department of Health and Human Services’ authority to prevent certain cash benefits for the needy from being withdrawn or used at marijuana stores.

These statements and others point toward a tougher stance by the Trump Administration. The Department of Justice may be less restrained under an Attorney General Sessions in its enforcement of federal drug laws against persons operating in states that have legalized marijuana.

Marc E. Sorini is a partner in the law firm of McDermott Will & Emery LLP and is based in the Washington, D.C. office. He heads the Firm’s Alcohol Regulatory & Distribution Group, where he focuses on regulatory and litigation issues facing the alcohol beverage industry and non-beverage alcohol users.

Vanessa K. Burrows is an associate in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C., office. She focuses her practice on health care law, with an emphasis on medical device, food and drug, and pharmacy law. Her broad-based experience also includes HIPAA compliance, health privacy and security laws, and public health law. She advises health care entities and their contractors on compliance, regulatory, data-sharing, licensing, and enforcement matters.

Previously, Vanessa served as the HIPAA Privacy Officer for the City of Chicago and an attorney for the Chicago Department of Public Health. In that capacity, she advised the City’s covered entities and business associates, as well as the health department’s executive team. She provided guidance on emergency preparedness authorities and public health laws on communicable diseases, HIV/AIDS/STIs, scope of practice, mental health, tobacco, and quarantine and isolation.

Prior to joining the City of Chicago, Vanessa worked on Capitol Hill as a Legislative Attorney for the Congressional Research Service in Washington, DC, where she advised Members of Congress and their staff in the areas of health law, administrative law, and constitutional law. She addressed specific legal issues in legislation including the Patient Protection and Affordable Care Act (ACA), the Food and Drug Administration Safety and Innovation Act (FDASIA), the Family Smoking Prevention and Tobacco Control Act (TCA), and the Food and Drug Administration Amendments Act (FDAAA).

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